Ex Parte Propst

Patent Trial and Appeal Board

Apr 12, 2017

12995311 (P.T.A.B. Apr. 12, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/995,311 02/23/2011 Charles Propst JR. 18691.0037.US0002 9565
77176 7590 04/14/2017
POT STNFT T T PC
EXAMINER
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ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
04/14/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES PROPST, JR.
Appeal 2015-005809
Application 12/995,311
Technology Center 1700
Before JEFFREY T. SMITH, N. WHITNEY WILSON, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the
Examiner’sdecision rejecting claims 1, 3—10, and 18—22. We have
jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 We refer to the Specification (“Spec.”) filed November 30, 2010, as
amended; Final Office Action (“Final Act.”) dated June 11, 2014;
Appellant’s Appeal Brief (“Br.”) dated December 31, 2014; and Examiner’
Answer (“Ans.”) dated March 20, 2015.
2 Appellant identifies Spectra-kote Corporation as the real party in interest.
Br. 2.
Appeal 2015-005809
Application 12/995,311
BACKGROUND
The subject matter on appeal relates to waterproof or water-resistant
coated paper or paperboard products, such as food trays. Spec. 5—6. Sole
independent claim 1 is reproduced from the Claims Appendix of the Appeal
Brief as follows:
1. A foodstuff container comprising: a container
selected from the group consisting of a food tray and a food pan
to contain an uncooked foodstuff, the container consisting of a
structural paper-based layer coated with a polymer coating,
wherein the sole polymer in the polymer coating consists of a
poly(methyl methacrylate), wherein the polymer coating is
coated in a position in the container to be in direct contact with
the uncooked foodstuff, and wherein the structural paper-based
layer comprises a component selected from the group
consisting of paper, paperboard, corrugated paper, bag stock,
ream wrap, roll wrap, folding board, solid fiber, and
combinations thereof; wherein the resultant container has the
property of suitably containing the foodstuff during a
processing step selected from the group consisting of cooking,
baking and combinations thereof.
REJECTIONS
The Examiner maintains the following grounds of rejection:3
I. Claims 1, 3—10, and 18—21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Di Mino4 in view of Gray5 and either Chalin6 or
3 Final Act. 6—17, 21—24; Ans. 2—19. Additional rejections under 35 U.S.C.
§§112 and 103(a) set forth in the Final Office Action stand withdrawn. See
Advisory Action (dated October 20, 2014) at 11; Ans. 19.
4 US 5,470,594, issued November 28, 1995 (“Di Mino”).
5 US 3,676,058, issued July 11, 1972 (“Gray”).
6 US 3,873,735, issued March 25, 1975 (“Chalin”).
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Application 12/995,311
Wydler,7 further in view of Bowden,8 Russell,9 Overcash10 or
Debikey.* 11
II Claim 22 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Di Mino, Gray, and Chalin, further in view of Bowden, Russell,
Overcash or Debikey.
III. Claims 1, 3—10, and 18—21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gray in view of Di Mino, Overcash, Debikey,
Bowden, and Russell.
IV. Claim 22 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gray in view of Di Mino, Overcash, Debikey, Bowden, Russell,
and Chalin.
V. Claims 1, 4—10, and 18—21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Debikey in view of Gray.
VI. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Debikey in view of Gray and Overcash.
VII. Claim 22 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Debikey in view of Gray and Chalin.
7 US 2007/0164045 Al, published July 19, 2007 (“Wydler”).
8 US 2005/0120915 Al, published June 9, 2005 (“Bowden”).
9 US 2005/0153088 Al, published July 14, 2005 (“Russell”).
10 US 6,187,389 Bl, issued February 13, 2001 (“Overcash”).
11 US 6,649,213 B2, issued November 18, 2003 (“Debikey”).
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Appeal 2015-005809
Application 12/995,311
DISCUSSION
I
With regard to Rejection I, Appellant argues the rejected claims as a
group.12 Br. 5—10. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), we
select claim 1 as representative and decide the appeal as to Rejection I based
on the representative claim alone.
The Examiner finds that Di Mino discloses a food container formed of
a structural paper-based material coated internally and externally with a
polymer coating consisting of poly(methyl methacrylate). Final Act. 10—11;
see also Ans. 3 (“Di Mino teaches polymer coatings where the polymer in
the polymer coating consists of poly(methyl methacrylate)”). The Examiner
interprets the term, “tray,” in claim 1 as “a receptacle with slightly raised
edges,” id. at 10, and finds that Di Mino’s container meets that definition
and, in any event, that it would have been obvious to provide Di Mino’s
container as a covered tray in view of Chalin’s disclosure of tray-shaped
food containers, id.', Ans. 20.
Appellant contests the Examiner’s interpretation of “tray,” arguing
that “the correct interpretation of tray means a flat receptacle, made of a
structural paper-based product with a polymer coating, wherein the sole
polymer in the polymer coating consists of poly(methyl methacrylate), with
raised edges.” Br. 6 (internal quotations omitted). Appellant’s proposed
definition essentially adopts the Examiner’s proffered definition of tray and
12 Appellant’s listing of certain dependent claims, Br. 3—4, or reiteration of
claim recitations therein, id. at 9—10, does not constitute separate argument
as to patentability of those dependent claims. See 37 C.F.R.
§ 41.37(c)(l)(iv).
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Appeal 2015-005809
Application 12/995,311
adds to it the additional features expressly recited in claim 1. Accordingly,
we see no meaningful dispute regarding the interpretation of the term “tray,”
which we agree would be understood to refer to an essentially flat receptacle
with raised edges, and that claim 1 requires that the recited “tray” is made of
a structural paper-based product with a polymer coating, wherein the sole
polymer in the polymer coating consists of poly(methyl methacrylate).
Appellant also argues that Di Mino’s disclosed container is a pouch
and, therefore, is not a tray. Br. 6. However, irrespective of whether Di
Mino’s pouch meets the definition of a tray, Appellant’s argument fails to
meaningfully address the Examiner’s determination that it would have been
obvious to form Di Mino’s container as a covered tray in light of the
teachings in Chalin.13
Appellant additionally argues that Di Mino’s inner coating is
disclosed as exhibiting a low glass transition temperature and, for that
reason, Di Mino’s container is not suitable for use in cooking and/or baking.
Br. 6. Claim 1 recites that the “container has the property of suitably
containing the foodstuff during a processing step selected from the group
consisting of cooking, baking and combinations thereof,” without specifying
any particular cooking or baking temperature. Di Mino discloses that the
inner poly(methyl methacrylate) coating is selected so as to be “rendered
molten by a standard heat sealing bar of the type used, for example, to apply
pressure and heat to thermoplastic films ... to seal them together.” Di Mino
13 Appellant’s sole argument with regard to the Examiner’s reliance on
Chalin is that “Chalin clearly teaches a pouch.” Br. 9 (citing Chalin col. 6,
11. 3—5). However, the passage of Chalin identified by Appellant makes no
reference to a pouch and, instead, refers to Chalin’s Figure 35 which Chalin
expressly identifies as depicting a “tray 1108.” Chalin col. 21,11. 35—37.
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Application 12/995,311
col. 4,11. 15—19. Appellant does not point us to persuasive evidence the heat
sealing property of Di Mino’s inner coating would preclude use in cooking
or baking, e.g., at temperatures lower than a heat sealing temperature.
Conversely, Chalin teaches that it was known to provide temperature
sensitive adhesive coatings for heat sealing covered food containers where
the resulting containers are useful for purposes of heating and cooking. See
Chalin col. 13,11. 7—20. Thus, Appellant’s argument that Di Mino’s
poly(methyl methacrylate) coating would have rendered the resulting
container unsuitable for cooking or baking is not supported by the evidence
of record and, therefore, is not persuasive.
The Examiner additionally refers to Gray, Bowden, Russell,
Overcash, and Debikey as supplemental teachings regarding either the use of
poly(methyl methacrylate) coating in food containers or providing food
containers in the shape of a tray. Final Act. 8—10. Appellant’s remaining
arguments against Rejection I, Br. 7—9, address these additionally cited
references individually and, therefore, do not refute the Examiner’s
determination of obviousness based on the collective teaching of the relied
upon prior art. Appellant’s challenges against the various other prior art
citations are not persuasive of reversible error in this case.
For the foregoing reasons, we will sustain Rejection I.
II
With regard to Rejection II, Appellant solely argues that “Chalin has
no disclosure” regarding the use of the containers disclosed therein for the
purpose of cooking or baking meat with gravy. Br. 10. However, Chalin
plainly and expressly teaches that the disclosed food containers “may be
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Application 12/995,311
heated by inserting the package in an electric toaster or other similar heating
device,” Chalin Abstr., and that illustrative foods that may be contained and
heated include “meat loaf (with and without gravy),” id. at col. 2,11. 33—34.
Appellant’s argument is contrary to the evidence and not persuasive.
We sustain Rejection II.
III-IV
With regard to Rejection III, Appellant argues the rejected claims as a
group, and solely argues that “[njowhere within the four comers of Gray is
described a container consisting of a stmctural paper-based layer coated with
a polymer coating, wherein the sole polymer in the polymer coating consists
of a poly (methyl methacrylate) as claimed.” Br. 11 (internal quotations
omitted). We select claim 1 as representative and sustain Rejection III based
on the findings and reasoning set forth in the Final Office Action.
Appellant’s argument that Gray fails to anticipate claim 1 does not address
the Rejection at issue, which is based on the collective teachings Gray in
combination with the additionally relied-upon prior art.
With regard to Rejection IV, Appellant solely argues that “there is
nothing further in Gray to support a meat foodstuff having one of a gravy or
a sauce.” Id. However, the Examiner relies upon Chalin for that teaching,
which Appellant’s argument does not refute. Final Act. 16.
For the foregoing reasons, Appellant’s arguments fail to identify
reversible error in either of Rejections III and IV. These Rejections,
therefore, are sustained.
V-VII
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Application 12/995,311
Appellant does not separately argue against any of Rejections V—VII.
See Br. 5—11. Accordingly, each of these Rejections is sustained.
DECISION
The Examiner’s decision rejecting claims 1, 3—10, and 18—22 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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